To Cooperate or Not: Know Thy Judge
In the current world of federal sentencing, one factor has taken on a much greater significance in the past couple of years: the judge. Previously, the federal sentencing guidelines, which for all intents and purposes could have been used to swear-in witnesses, was considered biblical in nature at a defendant’s sentencing hearing. Now, because judges are again permitted to be judges, the length and nature of a sentence for identical offenses can vary drastically in courtrooms down the hall from one another.
Soon after being charged, a criminal defendant is often faced with a life-altering decision: whether he should cooperate with law enforcement officials in an effort to lower his sentence. The risks of cooperation are obvious. First, there are valid safety concerns. It has become fairly routine recently for federal inmates to arrive to their designated prison and be pressured by fellow inmates to hand over their PreSentence Investigation Report or Judgment and Commitment Order (J & C) within 30 days. This is being done in an effort to determine if the newly-arrived prisoner cooperated with authorities. Of course, BOP regulations prohibit an inmate from possessing such sensitive documents (and attorneys from sending such materials) so the new inmate has a legitimate basis to decline the request. Still, safety concerns are something that a federal defendant must consider.
There are other reasons that cause a would-be cooperator to hesitate. Often cooperation would require implicating close friends or family members in criminal schemes. And there are no guarantees, at the front end, that cooperation will yield any real benefit. Sometimes, however, cooperation can yield extraordinary benefits, making the difference between jail time and probation for a defendant. Under the former guidelines-controlled scheme, cooperation was often the only way to get a below-guidelines sentence. That landscape has changed. Many federal judges are routinely sentencing below guidelines in certain types of cases. Others, however, are not.
It is critical, as early as possible in a criminal prosecution, for a defendant to talk to his or her experienced federal defense attorney about sentencing prospects, in addition to having a frank discussion about the strength of the government’s case. The attorney should help the defendant consider how the judge assigned to the case is likely to weigh the Title 18 USC Section 3553(a) factors, with or without cooperation. Only by considering how a particular judge will view a case can a defendant decide whether the risks of cooperation outweigh the likely benefits. One should keep in mind that judges are now given wide discretion to go above the guidelines range, as well as below. Obviously, even the best defense attorney cannot predict with certainty what a judge will do. But good results require early consideration of all of the relevant factors, which includes the history of the assigned judge’s sentencing practices.